# Makhan Singh v. State of Puniab

- **Citation:** [1964] 4 S.C.R. 797
- **Court:** Supreme Court of India
- **Decided:** 1962-11-03
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. SuBBA RAo, K. N. Wanchoo, M. Hidayatullah, K. c. DAS GUPTA, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/makhan-singh-v-state-of-puniab-3187
- **Pages:** 72

## Headnote

Constitution of India, 1950, Arts. 352 and 359-Proclamation
of emergency-President's order restricting enforc:ment of fundamental ·rights-Detention under Defence of India Act (Ll of
1962) and Defence of India Rules-Application for release .under
s. 491, Code of Criminal Procedure (Act V of 1898)-Mazntazn.
ability.
The appellants were detained under r. 30(1) of the Defence
of India Rules made by the Central Government under s. 3 of
the Defence of India Ordinance, 1962. They applied to the Punjab
and Bombay High Courts under s. 491(1)(b) of the Code of Criminal Prooedure and their case was that ss. 3(2)(15)(i) and 40 of the
Defence of India Act, 1%2, and r. 30(l)(b) of the Defence of India
Rules, which were continued under the Act, were unconstimtional
and invalid inasmuch as they contravened their fundamental rights
under Arts. 14, 21, 22(4), (5) and (7) of the Constitution and
that, therefore, they should be set at liberty. The High Courts held
that the Presidential Order which had been issued on November
3, 1962, under Art. 359( I) of the Constitution, after a declaration
of emergency under Art. 352, consequent on the Chinese invasion
of India, barred their right to move the said petitions and dismissed
them.
These appeals raised two common questions in this Court,.
( 1) what was the true scope and effect of the Presidential Order
i<sucd under Art. 359(1), and (2) did the bar created by the
Order operate in respect of the applications under s. 491(1)(b)
of the Code. The Presidential Order was as follows:-
"G .S.~. 1464 .-In exercise of the powers conferred by cl. (I)
of article 359 of the Constitution, the President hereby declares
that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the
Coi:istitution shall re:inain suspended for
the period during
which. the Proclamation of Emergency issued under clause (I)
of article 352 thereof on the 26th October 1962 is in force, if
such person has been deprived of any such rights under the
Defence of India Ordinance, 1962 (4 of 1962) or any rule or
order made thereunder."
"">'
By a later amendment of th~ Order Art. 14 was incorporated
into it.
1'63
1963
Makhan Singh
v.
State of
Puniab
, .
798
SUPREME COURT REPORTS
[1%4]
Held: (per Gajcndragadkar, Sarkar, Wanchoo, Hidayatullah,
Das Gupta and Shah, Jj.) that the proceedings taken by the appellants in the High Courts under s. 491 ( l) (b) of the Code were
hit by the Presidential Order and must be held to be incompetent.
Article 359 of the-Constitution was not capable of t\VO interpretations and it was, therefore not necessary to decide the controversy raised by the parties as to whether that Article should be
interpreted in favour of the President's power granted by it or the
fundamental rights of the citizens.
The King (At the Prosecution of Arthur Zadig) v. Halliday,
[1917] A.C. 260, Liversidge v. Sir John Anderson, [1942] A.C. 206,
Keshav Talpade v. The King Emperor, fl9431 F.C.R. 49, Nakkuda
Ali v. M. F. De S. /ayaratne, [1951] A.C. 66 and King Emperor
v. Vimalabai Deshpande, L.R. 73 I. A. 144, considered.
The words 'any court' in Art. 359(1), construed in their plain
grarmnatical meaning, n1ust mean any court of competent jurisdiction including the Supreme Court and the
High Courts before
'vhich the rights specified in the Presidential Order can be enforced. It was not correct to say that the use of the words was neces·
saty so :ls to include such other courts as might be empowered in
terms 'of Art. 32(3). Nor was it correct to say that the words
could not include a High Court as its power to issue a writ under
A:rt. 226( l) was discretionary.
In judging whether a particular proceeding fell within the
purview of the Presidential Order the determining factor was not
its forn1 nor the words in which the relief was couched but the substance of it.
If in granting the relief the court had to consider
whether any of the fundamental rights mentioned in the Presidential
Ord

## Text

_Characters 0–39,892 of 172,997. This is a partial read: ask again with offset=39892 for what follows._

-
4 S.C.R.
SUPREME COURT REPORTS
MAK.HAN SINGH
fl.
STATE OF PUNJAB
(AND CONNECTED APPEALS)
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo,
K. N. WANCHOO, M. HIDAYATULLAH, K. c. DAS GUPTA AND
J. c. SHAH, JJ.)
Constitution of India, 1950, Arts. 352 and 359-Proclamation
of emergency-President's order restricting enforc:ment of fundamental ·rights-Detention under Defence of India Act (Ll of
1962) and Defence of India Rules-Application for release .under
s. 491, Code of Criminal Procedure (Act V of 1898)-Mazntazn.
ability.
The appellants were detained under r. 30(1) of the Defence
of India Rules made by the Central Government under s. 3 of
the Defence of India Ordinance, 1962. They applied to the Punjab
and Bombay High Courts under s. 491(1)(b) of the Code of Criminal Prooedure and their case was that ss. 3(2)(15)(i) and 40 of the
Defence of India Act, 1%2, and r. 30(l)(b) of the Defence of India
Rules, which were continued under the Act, were unconstimtional
and invalid inasmuch as they contravened their fundamental rights
under Arts. 14, 21, 22(4), (5) and (7) of the Constitution and
that, therefore, they should be set at liberty. The High Courts held
that the Presidential Order which had been issued on November
3, 1962, under Art. 359( I) of the Constitution, after a declaration
of emergency under Art. 352, consequent on the Chinese invasion
of India, barred their right to move the said petitions and dismissed
them.
These appeals raised two common questions in this Court,.
( 1) what was the true scope and effect of the Presidential Order
i<sucd under Art. 359(1), and (2) did the bar created by the
Order operate in respect of the applications under s. 491(1)(b)
of the Code. The Presidential Order was as follows:-
"G .S.~. 1464 .-In exercise of the powers conferred by cl. (I)
of article 359 of the Constitution, the President hereby declares
that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the
Coi:istitution shall re:inain suspended for
the period during
which. the Proclamation of Emergency issued under clause (I)
of article 352 thereof on the 26th October 1962 is in force, if
such person has been deprived of any such rights under the
Defence of India Ordinance, 1962 (4 of 1962) or any rule or
order made thereunder."
"">'
By a later amendment of th~ Order Art. 14 was incorporated
into it.
1'63
1963
Makhan Singh
v.
State of
Puniab
, .
798
SUPREME COURT REPORTS
[1%4]
Held: (per Gajcndragadkar, Sarkar, Wanchoo, Hidayatullah,
Das Gupta and Shah, Jj.) that the proceedings taken by the appellants in the High Courts under s. 491 ( l) (b) of the Code were
hit by the Presidential Order and must be held to be incompetent.
Article 359 of the-Constitution was not capable of t\VO interpretations and it was, therefore not necessary to decide the controversy raised by the parties as to whether that Article should be
interpreted in favour of the President's power granted by it or the
fundamental rights of the citizens.
The King (At the Prosecution of Arthur Zadig) v. Halliday,
[1917] A.C. 260, Liversidge v. Sir John Anderson, [1942] A.C. 206,
Keshav Talpade v. The King Emperor, fl9431 F.C.R. 49, Nakkuda
Ali v. M. F. De S. /ayaratne, [1951] A.C. 66 and King Emperor
v. Vimalabai Deshpande, L.R. 73 I. A. 144, considered.
The words 'any court' in Art. 359(1), construed in their plain
grarmnatical meaning, n1ust mean any court of competent jurisdiction including the Supreme Court and the
High Courts before
'vhich the rights specified in the Presidential Order can be enforced. It was not correct to say that the use of the words was neces·
saty so :ls to include such other courts as might be empowered in
terms 'of Art. 32(3). Nor was it correct to say that the words
could not include a High Court as its power to issue a writ under
A:rt. 226( l) was discretionary.
In judging whether a particular proceeding fell within the
purview of the Presidential Order the determining factor was not
its forn1 nor the words in which the relief was couched but the substance of it.
If in granting the relief the court had to consider
whether any of the fundamental rights mentioned in the Presidential
Order, had been contravened, the proceeding was within the Order,
whether it was under Art. 32(1) or 226(1) of the Constitution.
The right to move the court for writ of habeas corpus Under
s. 49l(l)(b) of the Code of Criminal Procedure was now a statutory right and could no longer be claimed under the common law.
Girindra Nath Banerjee v. Birendra Nath Pal 1.L.R. 54 Cal.
727, District Magistrate, Trivandrum v. K. C. Mammen Map·
pillai, l.L.R. (1939] Mad. 708, Matthen v. District Magistrate, Trivandrum, L.R. 66 I.A. 222 and King Emperor v. Sibnath Banerji,
L.R. 72 I.A. 241, referred to.
Since the promulgation of the Constitution the two methods
by which a citizeri could enforce his right of personal freedom were
(i) by a writ under Art. 226(1)
or Art. 32(1), or (ii) under
s. 49l(l)(b) of the
Cocle of
Criminal
Procedure. Whichever
method he adopted if the right he sought to enforce was a fundamental right guaranteed by the Constitution the matter must, come
within Art. 359(1) of the Constitution; That the court could
exercise its power under s. 49l(l)(b) suo motu could make no
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4 S.G.R
SUPREME COURT REPORTS
799
difference and Arts. 372, 225 or 375 could provide no valid ground
of attack. The suspension of the right to move any court, as under
the Presidential Order, must hecessarily suspend the Court's jurisdiction accordingly.
The right to challenge a detention order under s. 49l(l)(b) of
the Code had been enlarged by the fundamental rights guaranteed
by the Constitution and when a detenu relied upon such rights
in his petition under that section he was in substance seeking to
enforce
his
fundamental rights.
The prohibition
contained in
Art. 359( l) and the Presidential Order must, therefore, apply.
The expression "right to move any court" in Art. 359( l) and
the Presidential Order takes in
all legal actions, filed or to be
filed, in which the specified rights are sought to be' enforced and
covers all relevant categories of jurisdictions of competent courts
under which the said actions would otherwise have been normally
entertained and tried.
Sree Mohan Chowdhury v. Chief Commissioner Union Territory of Tripura, [1964] 3 S.C.R. 442, referred to.
Even though the impugned Act may be invalid by reason of
contravention of Arts. 14, 21 and 22, as contended by the appellants, that invalidity could not be challenged during the period
prescribed by the Presidential Order and it could not be said that
the President could not because of such invalidity issue the order.
Where, however, the challenge to the validity of the detention
order was based on any right other than those mentioned in the
Presidential Order, the detenu's right
to move
any court could
not be suspended by the Presidential Order because the right was
outside Art. 359(1).
Where again the detention was challenged on the ground that
it contravened the mandatory provisions of the relevant Act or that
it was malafide and was proved to be so and in all cases falling
under the other categories of s. 491(1) of the Code excepting
those under s. 49l(l)(b), the bar of the Presidential Order
could have no application.
So also
the
plea that the operative
provision of the law under which the order of detention was made
suffered from the vice of excessive delegation, was an independent
plea not relatable
to
the
fundamental rights mentioned in the
Presidential Order and its validity had to be examined.
The plea that s. 3(2)(15)(i) and s. 40 of the impugned Act
suffered from excessive delegation must fail. The legislative policy
was broadly stated in the preamble and the relevant provisions of
ss. 3(1) and 3(2) gave detailed and specific guidance to the rule
making authority and it was not correct to say that the Act had
by the impugned sections delegated essentially legislative function
to that authority.
Rule 30(1){b) which was consistent with the
operative provisions of the Att could not also be challenged on that
ground.
1963
Mnkhan Singh
v.
State of
Punjab
1963
· Makhan Singh
v.
State of
Punjab
800
SUPREME COURT REPORTS
(1%4]
In re The Delhi Laws Act, 1912 etc. [1951] S.C.R. 747,
Harishankar Bag/a v. The State of Madhya Pradesh, [1955] 1
S.C.R. 380, Bhatanagars and Co. Ltd., v. The Union of India,
[ 1957] S.C.R. 701, relied on.
The impugned Act could not also be struck do,vn as a piece
of colourable legislation because the Preventive Detention Act, 1950,
was already on the Statute book. The Parliament had power under
Entry 9, List I of the Seventh Schedule to the Constitution and if
in view of the grave threat to the security of India it passed the
Act, it could not be said to have acted malafide.
If the Parliament thought that the executive would not be
able to detain citizens reasonably suspected of prejudicial activities
by a recourse to the Preventive Detention Act, 1950, which provid~
ed for the required constitutional safeguards and the impugned
Act which it enacted did not, it could not be suggested that it was
acting malafide. Even if the impugned Act contravened Arts. 14
and 22 and the detentions thereunder were invalid, Art. 359( 1)
and the Presidential Order, which· were precisely meant to meet
such a situation, barred investigation on the merits during the
period prescribed by the Order.
The proceeding under s. 491(1)(b) of the Code is one proceeding and the sole relief that can be 'claimed under it is release
from the detention. If that could not be claimed because of the
Presidential Order it was unreasonable to say that a mere declaration that the impugned Act and the detention thereunder were
invalid could be made. Such a declaration is clearly outside the
purview of s. 49l(l)(b) of the Code as also of Arts. 226(1) and
32(1) of the Constitution.
The period for which the emergency should continue and the
restrictions that should be imposed
during
its
continuance are
matters that must inevitably be left to the executive. In a dem&-
cratic state the effective safeguard against any abuse of power in
peace as also in emergency is the existence of enlightened, vigilant
and vocal public opinion.
liversidge v. Sir fahn Anderson, [1942] A.C. 206, referred to.
The inviolability of individual freedom and the majesty of law
that sustains it are equally governed by the Constitution which
has made this Court the custodian of the fundamental rights on
the one hand and, on the other, provided for the declaration of the
emergency. Consequently, in dealing with the right of a citizen
to challenge the validity of his detention, effect must be given to
Art. 359( 1) and the Presidential Order . issued
under it.
The
right specified in that Article must be held to include such right
whether constitutional or constitutionally guaranteed and the words
"any court" must include the Supre~e Court and the High <;:ourt.
The Punjab and the Bombay High Courts
were,
therefore,
right in their decision that the applications under s. 491(1)(b). of.
'
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4 S.C.R.
SUPREME COURT REPORTS
801
the Code were incompetent in so far as they sought to challenge
the validiry of. the detentions on the ground that the Act and the
Rules under which the orders were made contravened Arts. 14, 21
and 22(4)(5) and (7) of the Constitution.
Per Subba Rao, J. It was clear that s. 3(2)(15)(i) of the
Defence of India Act, 1962, and r. 30( l) (b) made under the Act
contravened the relevant provisions of Art. 22 of the Constitution
and were, therefore, void.
Deep Chand v. The State of Uttar Pradesh, [1959] Supp. 2
S.C.R. 840, Mahendra Lal v. State of U.P., A.LR. 1963 S.C.1019,
A. K. Gopalan v. State of Madras, [1950] S.C.R. 88, referred to.
Under the Constitution, every person has a right to move the
Supreme Court, the High Courts
or
any other court or courts
constituted by the Parliament under Art. 32 ( 3) for the enforcement of fundamental rights in the manner prescribed.
But while
the right to move the Supreme Court is a guaranteed right, tho
right to move the others is not so.
Article 359, properly construed, meant that the bar imposed
by the Presidential Order applied not only to the guaranteed right
to move the Supreme Court but also the rights to move the other
courts under Art. 32 and Art. 226 of the Constitution.
There is no new rule of construction peculiar to war measures.
It is always the same, whether in peace or in war.
The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself.
Words must be given their natural and ordinary meaning unless
there is .imbiguity in the language in which case the court has
to adopt that meaning which furthers the intention of. the Legislature.
A constitutional provision such as Art. 359, however, cannot
he given a strained construction to meet a passing phase such as
the present emergency.
Rex v. Halliday, L.R. [1917] A.C. 260, Liversidge v. Sir fohn
Andmon, L.R. [1942] A.C. 206, Nakkuda Ali v. fayaratna, L.R.
[1951] A.C. 66, Gibbon v. Ogdm, (1824) 6 L. Ed. 23, discussed.
Section 491 of the Code of Criminal Procedure is wide in its
terms and gives a discretionary power to the High Courts. Unlike
Arts. 32 and 226, the exercise of the power is not channelled
through procedural writs or orders and their technicalities cannot
circumscribe the court's discretion.
Girindra Nath Banerjee v. Birendra Nath Pal, (1927) I.L.R.
54 Cal. 727, District Magistrate, Trivandrum v. Mammen Mappillai,
I.L.R. 1939 Mad. 708, Matten v. District Magistrate, Trivandrum,
L.R. (1939) 66 I.A. 222, referred to.
&ction 491 is continued by Art. 372 and Art. 225 preserves
1963
M.rkha Singh
...
S1111e of
Pnnj"'1
1963
Makhan Si'ngh
v.
State of
Punjab
802
SUPREME COURT REPORTS
[1964)
the jurisdiction of the High Court. The power it confers on the
High Court is not inconsistent either with Art. 32 Or Art. 226 or
any other Article of the Constitution and the section cannot, therefore, be said to have been impliedly superseded even to the extent
Art. 226 empowers the High Court
to give
relief in cases of
illegal detention. Though remedial in form the section postulates
the existence of the substantive right that no ~son can be deprived of his liberty except in
the
manner prescribed by law.
It
assumes the existence of the rule
of
law and empowers High
Court to act suo motu. The rights, substantive and procedural:
conferred by it are different from those under Arts. 32 or 226 of
the Constitution. It places the onus
on the custodian to prove
that the detention is legal and although in scrutinising the legality
of the detention the court may have to consider whether the law
offends any fundamental rights, that cannot make the proceeding
one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of
a
law
because
of infringement of fundamental rights generally.
The mode of approach to' the High Court under s. 491 of
the Code or the nature of the relief given thereunder cannot be .
equated with those under the Constitution.
The absolute discretionary jurisdiction under it cannot be put on a par with the
jurisdiction under Art. 226 which is hedged in by constitutional
limitations.
Alam Khan
v.
The Crown, (1947)
l.L.R. 28 Lahore 274,
Romji Lal v. The Crown, I.L.R. (1949) II E.P. 28, King-Emperor
v. Vimlabai Deshpande, (1946) L.R. 73 I.A. 144, referred to.
While s. 491 gives no right to enforce fundamental rights,
operating as it does as a check on arbitrary action, Art. 359 is concerned not with statutory powers but deals with the constitutional
right and the constitutional enforcement of it. It was not, therefore, correct to say that Art. 359 would
be
frustrated if S; 491
was allowed to stand for Parliament might amend that section any
time it liked.
The expression "right to move- any court for enforcement of such
of the rights conferred by Part III" in Art. 359 must refer only
to the right to move under Art. 32 or Art. 226 for the said specific relief and could not be applied to the exercise of the statutory
power of the High Courts under s. 491 of the Code and, consequently, the expression "all proceedings pending in any court for
the enforcement of the rights" must refer to the proceedings initiated in exercise of that right.
The dete~us could not, therefore, enforce their fundamental
rights under Arts. 21 .. 32 and 14 while the Presidential Order lasted,
but that did not affect the High Court's power under s. 491 of
the Code.
The President's Order cannot bar the detenus from proving
oven wider Arts. 32(1) and 226 that the detentions were not made
....
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4 S.C.R.
SUPREME COURT REPORTS
803
under the Defence of India Ordinance or the Act as they were
outside the Ordinance or the Act or in excess of the power conferred by them
or
that the detentions
were made malafide or in
fraudulent exercise of power.
CRIMINAL
APPELLATE
JuRJSDICTION : Criminal Appeal
No. 80 of 1963.
Appeals by special leave from the judgment and order
dated March 26, 1963, of the Punjab High Court in Criminal Mis. No. 186 of 1963.
Criminal Appeals Nos. 86 to 93 of 1963.
Appeal by special leave from the judgment and order
dated February 21, 1963 of the Punjab High Court in Criminal Misc. No. 155, 102, 108, 105, 104, 101 and 107 of 1963
and judgment and order dated February 1963 of the same
High Court in Criminal Misc. No. 99 of 1963.
Criminal Appeals Nos. 109 to 111 of 1963.
Appeals from the judgment and order dated May 31,
1963 of the Maharashtra High Court in Criminal Applications Nos. 217, 218 and 114 of 1963.
Criminal Appeals Nos. 114 to 126 of 1963.
Appeals from the judgment and order dated May 31,
1963 of the Maharashtra High Court in Criminal Applications Nos. 271, 265, 270, 267, 219, 220, 269, 264, 263, 266
and 273 of 1963.
Criminal Appeal No. 65 of 1963.
Appeal by special leave from the judgment and order
dated April 3, 1963, of the Maharashtra High Court
(Nagpur Bench) in Criminal Application No. 11 of 1963.
M. C. Setalvad, N. C. Chatterjee, A. V. Viswanatha
Sastri, S. Mohan Kumaramangalam, C. B. Agarwala,
Sarjoo Prasad, D. R. Prem, A. S. R. Chari, S. G. Patwardhan,
W. S. Barlingay, Etharajalu Naidu, Veda Vyas,
Raghubir Singh, K. T. Sule, Asif Ansari, Hardayal Hardy,
Bawa Shiv Charan Singh, S. N. Mukherjee, Durgabhai
Deshmukh, M. S. K. Sastri, G. B. Pai, Ganpat Rai, D. N.
Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha
Reddy, /anardhan Sharma, K. R. Choudhury, B. P. Maheshwari, /. B. Goyal, A. K. Nag, Y. Kumar, Hardev Singh,
M. I. Khowaja, S. S. Shukla, K. K. Jain, Bishambar Lal
Khanna, S. Murthi, P. K. Chakravarti, P. K. Chatterjee,
A. George Pudussary, Girish Chandra Mathur, Udai Pratap
1963
Makhan Singh
v.
State of
Punjab
1963
Makhan Singh
v.
State of
Puni•b
804
SUPREME COURT REPORTS
[1964]
Singh, Yogeshwar Prasad, M. R. Krishna Pillai, B. D.
Sharma, K. P. Gupta, T. S. Venkataraman, M. Veerappa,
T. R. Ramachandra, R. C. Prasad, Santosh Chatterjee,
N. N. Keshwani, K. fayaram, R. Ganapathy Iyer, Thyagarajan, R. Vasudeva Pillai, R. V. S. Mani, S. C. Majumdar,
Shaukat Hussain, K. Baldev Mehta, Mohan Behari Lal,
Sadhu Singh, V. G. Row, S. N. Kakkar, S. K. Kapur,
Parthasarathy, Shanti Swarup Bhatnagar, K. L. Mehta,
Satish Mehta, Brij Kishore Prasad, Ali Ahmad, V. A. Syeid
Muhammad, Narayanarayan Gooptu, Tapesh Roy, M:uihan
Bhaittia, Ajit Singh Banis and Brij "&ij Kishore, f. B. Dadachanji, 0. C. Mathur, Ravinder Narain, D. P. Singh,
M. K. Ramamurthi, R. K. Garg, and S. C. Agarwal, for the
appellant (in Cr. A. No. 80 of 1963).
C. K. Daphtary, Attorney-General, L. K. Kaushal,
Deputy Advocate-General, Punjab, D. D.
Chaudhuri,
R. N. Sachthey and R. H. Dhebar, for the respondent (in
Cr. A. No. 80 of 1963).
A. S. R. Chari, D. P. Singh, M. K. Ramamurthi,
R. K. Garg and S. C. Agarwal for the appellant (in Cr. A.
No. 86 of 1963).
Hardev Singh and Y. Kumar, for the appellants (in
Cr. A. Nos. 87 to 93 of 1963).
L. D. Kaushal, Deputy Advocate-General, Punjab,
D. D. Chaudhri, R. N. Sachthey and R. H. Dhebar, for the
respondent' (in Cr. A. Nos. 86 to 93 of 1963).
A. S. R. Chari, 0. P. Malhotra, B. Parthasarathy, f. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for the
appellant (in Cr. A. No. 65 of 1%3).
N. C. Chatterjee, and fanardan Sharma, for the ap~l
lant (in Cr. A. No. 109 of 1963).
K. T. Sule, fitendra Sharma and fanardan Sharma, for
the appellants (in Cr. A. Nos. lll and ll4 to 126 of 1%3)
and for the Detenue-Interveners Nos. 12, 14, 16, 18 and 37).
C. K. Daphtary, Attorney-General, N. S. Bindra,
B. R. G. K. Achar, R. N. Sachthey and R. H. Dhebar, for
the respondents (in Cr. A. No. 65, 109 to lll and 114 to
126/1%3).
C. K. Daphtary, Attorney-General, H. N. Sanyal, Solicitor-General, S. V. Gupte, Additional Solicitor-General,
R. N. Sachthey and R. H. Dhebar, for intervener No. 1
N aunit Lal, for intervener No. 1.
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4 S.C..:.R.
SUPREME COURT REPORTS
B. Sen and P. K. Bose, for intervener No. 3.
S. P. Varma, for intervener No. 4.
805
M. Adhikari, Advocate-General, Madhya Pradesh and
I. N. Shroff, for intervener No. 5.
A. Ranganadham Chetty and A. V. Rangam, for intcrverner No. 6.
G. C. Kasliwal, Advocate-General, Rajasthan, R. H.
Dhebar, R. N. Sachthey, for intervener No. 7.
C. P. Lal, for intervener no. 8.
N. C. Chatterjee, Narayan Gooptu, Tapesh Roy, D. P.
Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwal,
for intervener No. 69.
A. S. R. Chari, Narayan Gooptu, Tapesh Roy, D. P.
Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwal,
for intervener No. 70.
A. S. Peerbhoy A. Desai, M. Rajagopalan and K. R.
Choudhari, for interveners Nos. 79 and 80.
September 2, 1963. The Judgment of P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah,
K. C. Das Gupta and J. C. Shah, JJ. was delivered by P.
B. Gajendragadkar, J. K. Subba Rao, J. delivered a dissenting Opinion.
GAJENDRAGADKAR, J.-This group
of
26
crnrunal appeals has been placed for hearing and disposal before
a special Constitutional Bench, because the appeals constituting the group raise two common important questions
of Constitutional law. Nine of these appeals have been
preferred against the decisions of the Punjab High Court,
whereas seventeen have been preferred against the decisions of the Bombay High Court. All the appellants are
detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule
30(l)(b) of the Defence of India Rules (hereinafter called
the Rules) made by the Central Government in exercise
of the powers conferred on it by section 3 of the Defence
of India Ordinance, 1962
(No. 4 of 1962)
(hereinafter
called the Ordinance). They applied to the Punjab and
the Bombay High Courts respectively under section 491
(1) (b) of the Code of Criminal Procedure and alleged that
they had been improperly and illegally detained. Their
contention was thats. 3(2)(15)(i) ands. 40 of the Defence
1963
Makhan Singh
...
State of
Punjab
1963
Makhan Singh
v.
State of
Puniab
Gajendragadkar, /.
SUPREME COURT REPORTS
[1%4]
of India Act, 1962 (No. 51 of 1962) (hereinafter called 'the
Act') and Rule 30(1)(b) under which they have been
detained are constitutionally invalid, because they contravene their fundamental rights under Articles 14, 21 and
22(4), (5) & (7) of the Constitution, and so, they claimed
that an order should be passed in their favour directing the
respective State Governments to set them at liberty. These
petitions have been dismissed on the ground that the Presidential Order which has been issued under Art. 359 of
the Constitution creates a bar which precludes them from
moving the High Court under s. 491 ( 1) (b) Cr. P. C. That
is how the decisions of the two High Courts under appeal
raise two common questions of considerable importance.
The first question is : what is the true scope and effect of the
Presidential Order which has been issued under Art. 359
(1) ? The answer to this question would depend upon a
fair and reasonable construction of Art. 359( 1) itself. The
second question is : does the bar created by the Presidential
Order issued under Art. 359(1) operate in respect of applications made by detenues under section 491 ( 1) (b) of the
Code? The answer to this question would depend upon
the determination of the true character of the proceedings
which the detenues have taken under s. 491 ( 1) (b), considered in the light of the effect of the Presidential Order
issued under Art. 359(1). Both the Punjab and the Bombay High Courts have held against the appellants. Meanwhile, when similar petitions were made before the Alla-'
habad High Court in Criminal Cases Nos. 1618, 1759 and
1872 of 1963 Sher Singh Negi v. District Magistrate, Kanpur & Anr., the said High Court took a contrary view
and directed the release of the detenues who had moved
it under s. 491 (1) (b) of the Code. It is because the questions raised are important and the answers given by the
different High Courts have disclosed a sharp difference
of opinion that a Special Bench has been constituted to
deal with these appeals. If the two principal questions are
answered in favour of the detenues, a third question would
arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules.
On the 8th September, 1%2, the Chinese aggressively
attacked the northern borde.r of India and that constituted
a threat to the security of India.
That is why on
< -
-
.:.-.
-
4 S.C.R.
SUPREME COURT REPORTS
807
the 26th October, 1962, the President· issued a Proclamation under Art. 352 of the Constitution. This Proclamation declared that a grave emergency existed whereby
the security of India was threatened by external aggression.
On the same day, the Ordinance was promulgated by the
President. This Ordinance was amended by Ordinance
No. 6 of 1962 promulgated on November 3, 1962. On this
day, the President issued the Order under Art. 359(1),
suspending the rights of citizens to move any Court for
the enforcement of the rights conferred by Arts. 21 and
22 of the Constitution for the period during which the proclamation of emergency issued on October 26, 1962 would
be in force. On November 6, 1962, the rules framed by the
Central Government were published. Then followed
an amendment of the Presidential Order on November 11
1962. By this amendment, for the words and figures "article
21" the words and figures "articles 14 and 21" were substituted. On December, 6, 1962, Rule 30 as originally framed
was amended and Rule 30-A added. Last came the Act on
December 12 1962. Section 48 ( 1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of
1%2. Section 48(2) provides that notwithstanding such
repeal, any rules made, anything done or any action taken
under the aforesaid two Ordinances shall be deemed to
have been made, done or taken under this Act as if this
Act had commenced on October 26, 1962. That is how the
Rules made under the Ordinance continued to be the Rules
under the Act, and it is under Rule 30( 1) (b) that the appellants have been detained.
Before dealing with the points which have been raised
for our decision in the present appeals, it is necessary to
indicate briefly at the outset the general argument which
has been urged before us by Mr. Setalvad on behalf of the
appellants, and the learned Attorney-General on the other
side. Art. 359(1) which falls to be construed, occurs iH
Part XVIII of the Constitution which makes emergency
provisions.
Whenever the security of India or any part
of the territory of India is threatened whether by war or
by external aggression or internal disturbance, the President may, under Art. 352, by proclamation, make a declaration to that effect. Articles 353 to 360 which occur in
this Part thm constitute emergency provisions. The learned
1963
Makhan Singh
v.
State of
Puniab
Gai<ndragadkar, /.
1963
M11khan Singh
v.
Stt1k of
Punjllb
GajenJr•
gadk•r, /.
808
SUPREME COURT REPORTS
[1%4]
Attorney-General contends that in construing an emergency provision like Art. 359(1), we must bear in mind the
fact that the said Article is intended to deal with a situation
which has posed a threat to the security of India, and so,
fundamental rights guaranteed by Part III which are undoubtedly of vital importance to the democratic way of
life guaranteed by the Constitution have to be regulated
during an emergency, because the very security of the
nation is exposed to serious jeopardy. The security of the
nation on such a solemn occasion must have precedence
over the liberty of the individual citizens, and so, it is
urged that if Art. 359 is capable of two constructions, one
in favour of the fundamental rights of the citizens, and the
other in favour of the grant of power to the President to
control those rights, the Court should lean in favour of
the grant rather than in favour of the individual citizen's
fundamental rights.
In support of this argument, the learned AttomeyGeneral has relied on two decisions of the House of Lords.
In The King (At the Prosecution of Arthur Zadig) v.
Halliday,(') Lord Finlay L. C. who was called upon to construe Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act, 1914, noticed the argument
that if the Legislature had intended to interfere with personal liberty, it would have provided, as on previous occasions of national danger, for suspension of the rights of
the subject as to a writ of habeas corpus, and rejected it with
the observations that the Legislature had selected another
way of achieving the same purposes, probably milder as
well as more effectual than those adopted on the occasion
of previous wars. He added that the suggested rule as to
~onstruing penal statutes and the provision as to trial of
British subjects by jury made by the Defence of the Realm
Act, 1915, have no relevance in dealing with an executive
measure by way of preventing a public danger.
The majority decision of the House of Lords in Lit1ersidge v. Sir fohn Anderson(') has also been relied upon
by the learned Attorney-General. In that case, the House
or Lords had to consider the true scope and effect of Regulation 18B of the Defence (General) Regulations, 1939.
(1) [1917] A.C. 260, 270.
( 2) [1942] A.C. 206.
-
-
4 S.C.R.
SUPREME· COURT REPORTS
809
Viscount Maugham in rejecting the argument of the detenu that the liberty of the subject was involved and that
the legislation dealing with the liberty of the subiect must
be construed, if possible, in favour of the subject and
against the Crown, quoted with approval the language of
Lord Finlay, L. C., in the case of Rex v. Halhday(1).
Lord Macmillan who took the "1me view observed that
it is right so to interpret emergency legislation as to prO'
mote rather than to defeat its efficacv for the defence of
the realm.
That is in accordance :.Vith a general rule
applicable to the interpretation of all statutes or statutory
regulations in peace time as well as in war time. Lord
Wright and Lord Romer .adopted the same approach. The
Attorney-General relies on the fact that this approach has
also been adopted by Gwyer, C. T .• in Keshav Talpade v.
The King Emperor(
2). In making his contention in regard to the proper approach which the Court should adopt
in construing Art. 359, the learned Attorney-General no
doubt contended that the question about the approach
would arise only if two constructions are reasonably possible. According to him, Art. 359 was capable of only one
construction and that is the construction which the High
Courts of Punjab and Bombay have accepted.
On the other hand, Mr. Setalvad has argued that Art.
359 is not an emergency legislation properly so called and
on the merits, he has strongly resisted the suggestion made
by the learned Attorney-General that if two reasonable
constructions are possible, we should adopt that which is
in favour of the grant of power to the President and not
in favour of the citizens' fundamental rights. He has relied on the minority speech of Lord Atkin in the case of
Liversidge(') and has argued that the view taken by Lord
Atkin should be preferred to the majority view which the
House of Lords adopted in that case. "In this country",
observed Lord Atkin, "amid the clash of arms, the laws
are not silent. They may be changed, but they speak the
same language in war as in peace. It has always been one
of the pillars of freedom, one of the principles of liberty
for which on recent authority we are now fighting, that
the judges are no respecters of persons and stand between
( 1) [1917] A.C. 260, 278.
(3) (1943) F.C.R. 49, 63.
( 3 ) [1942] A.C. 206. •
~2-2 S. C. lndia/64
1963
Makhan Singh
v.
State of
Punpb
Gajendra--
gadkar, /.
1963
Makhan Singh
v •.
State of
Puniab
Gaiendragadkar, /.
810
SUPREME COURT REPORTS
(iJ54]
the subject and any attempted encroachments on his liberty
by the executive, alert to see that any coercive action is
justified in law. In this case, I have listened to arguments
which might have been addressed acceptably to the Court
of King's Bench in the time of Charles I." Realising that
he was in a minority, Lord Atkin added that he protested,
even if he did it alone, against a strained construction put
on words with the effect of giving an uncontrolled power
of imprisonment to the Minister. In this connection, Mr.
Setalvad referred to two subsequent decisions of the Privy
Council in which the view taken by Lord Atkin has been
accepted, vide Nakkuda Ali v. M. F. De S. fayaratne('),
and King-Emperor v. Vimalabai Deshpande('). In the former case, Lord Radcliffe observed that indeed, it would be a
very unfortunate thing if the decision of Liversidge's
case came to be regarded as laying down any general rule
as to the construction of such phrases when they appear·
in statutory enactments, and he added that the said deci;
sion is an authority for the proposition that the words "if;
A. B. has reasonable cause to believe" are capable of mean-.
ing "if A. B. honestly thinks that he has reasonable cause
to believe" and that in the context and attendant circum·
stances of Defence Regulation 18B they did in fact mean
just that. In distinguishing the said decision, Lord Rad~
cliffe made the somewhat significant comment that the
elaborate consideration which the majority of the House
gave to the. context and circumstances before adopting
that construction itself shows that there is no general principle that such words are to be so understood. Mr. Setalvad has also invited our attention to the fact that the majority d~cision of the House of Lords in Liversidge( 3) has
not received the approval from jurists, ( vide Maxwell on
Interpretation of Statutes p. 276, footnote 54, Craies on
Statue Law p. 309, and Friedmann, Law in a Changing
Society p. 37.) Like the Attorney-General, Mr. Setalvad
also urged that the stage to choose between two rival constructions would not arise in· the present appeals because,
accordirig to him, the construction for which he c011tended
was the only reasonable construction of Art. 359.
( 1 ) [1951] A.C. 66, 76.
( 3 ) J.1942] A.C. 206.
( 2 ) 73 I.A. 144.
- 4 S.C.R.
SUPREME COURT REPORTS
811
-
- ,
', '.' . In our opinion, it is unne~essaty to dcadc the merits -
' ·of the rival contentions urged before us in regard to the
rule of construction and the approach·.which the Court
•\__- should adopt in construing Art. 359. It is' common ground
that the question of approach would become relevant and
material only if we are satisfied that Art. 359 is reasonably
capable of two alternative constructions. As we will preSently point out, after hearing counsel on both 5ides, we
have reached the conclusion that Art. 359 is reasonably
capable of only one construction and that is the •construe•
tion which has been put on it by the Punjab and Bombay
High Courts. That is why we are relieved of the task of
dealing with the merits of the controversy between the
'-. · parties on this point.
•
,
_ Let us then revert to the question of construing Art.
359. In doing so, it may be relevant and somewhat useful
to compare and contrast the provisions of Articles 358-and -
359. Indeed, both Mr. Setalvad and the learned Attorney-
- General contended that Art. 359 should be interpreted in _
_ the light of the background supplied by the. comparative
• \.
examination of the respective provisions contained in Arts.
35S and
3~9 (I) & (2). The said two Articles read as
under:-
·
-
"358. While a Proclamation of Emergency is in opera~
tion, nothing in article 19 shall restrict the power oL
the State as defined in Part III to make any law or
to take any executive action which the State would but
for the provisions contained in that Part be competent
to make or to take, but any law so made shall, to the
extent of the incompetency, cease to have effect as soon-_
as the Proclamation ceases to operate, except as respects
things done or omitted to be done before . the .law so
-ceases to have effect.
·
359. (I) Where a Proclamation of Emergency 1s _ m
operation, the President may by order declare that the
right to move any Coun for the enforcement _of such
of the rights conferred by Part III as may be mentioned
in the order and all proceedings pending iii any court
for the enforcement of the rights s0 -mentioned shall _
remain suspended for the period during which the
Proclamation is in force or for such shorter period as
may be specified in the order.
1963
Maklia1t Singli
Y.
Slate of
Pttlijllh
Gaji:riiltagailkat-, f.
I
·r
·'";--,;,~ --
~
-
·' -. ·--
.'v' '812
, . - SUPREME COURT REPORTS
[1964]
...........
'' ''"<
. 1963 \ '
·--\\1
Makhan Singh
.v.
State of .
Punjab
Gajendr11gadl(_ar, J.
. . ..
.. -
·' .
-
-
.
'
-- . .
-
(2) Any order .made as aforsesaid may ·extend to the
whole or any part of the territory of India."
It would be noticed that as soon as a Proclamation of
' Emergency has been_ issued under' Art. 352 and so long as ' <
. it lasts, Art. 19 is suspendea and the power of the legislatures as well as the executive 'is to that extent made wider.
The -suspension' of Ari. 19 during · the pendency of the
Proclamation of emergency removes the fetters created on
the legislative and executive powers by Art. 19 and if the
legislatures 'make . ._ laws or the executive commits acts
which _are ! inconsistent· with the rights guaranteed by
. Art~ · 19, their validity is not open · to challenge either.
during the ·continuance of the emergency or even there-
..,.-
after. As soon as the Proclamation ceases to' operate; the
legislative enactments. passed and the · executive actions
taken during the course of the said emergency shall be
inoperative to the extent to which they conflict with the
rights guaranteed under/ Art. 19 ·because as soon as the
emergency is lifted, Art. 19 which was suspended during
the emergency is automatically· revived and begins to operate. Article 358, however, makes it clear that things
-~ ~
done or omitted to
be
done during_ the emergency
cannot be challenged even after the emergency is over.
In -other 'words, the suspension of Art. 19 is complete
.
during the period in question :ind legislative and executive
· ·action which contravenes Art. 19 cannot be questioned even
- after the emergency is over. ·
·
'Article 359, on the other hand, does not purport ex- _
pressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right
.--
to move any court for enforcement of such 1of the rights
in Part III as may be mentioned in the order and all proceedings pending in any ci>un for the enforcement of the
rights so mentioned shall remain suspended for the period
during which the Proclamation is in force or for such
· . shorter period as may be specified in the order. What the
Presidential Order purports to do by virtue of the power
conferred on the President by Art.